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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
v.
AFFIRMED
COUNSEL
MEMORANDUM DECISION
M c M U R D I E, Judge:
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STATE v. TULL
Decision of the Court
boxes containing tens of thousands of dollars to the Phoenix area. Tull was
the mastermind of the organization.
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STATE v. TULL
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DISCUSSION
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STATE v. TULL
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A. Yes, sir.
A. No, sir.
A. No, sir.
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STATE v. TULL
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A. Yes.
Q. Second day?
A. I believe so.
A. No, sir.
A. No, sir.
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STATE v. TULL
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STATE v. TULL
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(d) the expert has reliably applied the principles and methods
to the facts of the case.
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STATE v. TULL
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STATE v. TULL
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In State v. McKinley, we held that the burden of proof did not shift to the
defendant when the State disclosed to a jury that the defendant failed to test
semen samples despite having the opportunity to do so. 157 Ariz. 135, 138
(App. 1988). Likewise, here, the State did not engage in burden-shifting by
commenting on defendants failure to obtain their own translations of the
telephone conversations. In any event, the State made the comment to the
court out of the presence of the juries, who were properly instructed on the
presumption of innocence, burden of proof, and reasonable doubt.
C. Prosecutorial Misconduct.
8 Tull also disputes the trial courts refusal to grant a new trial based
on the prosecutors failure to disclose evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). We addressed this issue in Washingtons
appeal and concluded the trial court acted within its discretion by finding
the undisclosed material would not have affected the verdicts. State v.
Washington, 1 CA-CR 14-0808, 2017 WL 1325212, *4, 1415 (April 11,
2017). We discern no principled reason to reconsider that conclusion.
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STATE v. TULL
Decision of the Court
error is fundamental, and (3) the error caused him prejudice. State v. James,
231 Ariz. 490, 493, 11 (App. 2013) (internal quotation omitted).
31 Not only does Tull fail to establish error, he does not satisfy
his burden of showing prejudice. Tull argues he was prejudiced by the
vouching because Braithwaite was otherwise a far from credible
witness. Properly addressing this argument would require us to assess
Braithwaites credibility. This court, however, does not make credibility
determinations, the jury does. State v. Soto-Fong, 187 Ariz. 186, 200 (1996).
CONCLUSION
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